When Should I File a Petition to Modify?

Parents often ask a Salt Lake City family lawyer what needs to happen in order to modify their existing custody arrangement. Unfortunately, the answer is always “It depends.”

Utah law allows one or both parents of a child to petition a court to modify. They can modify an order that establishes joint legal or physical custody. A parent would have to show enough evidence that shows the circumstances of the child or parents have changed significantly. This is relevant if the changes have been made since the entry of the order that is being modified. They also have to show that the change of the previous order would be in the best interest of the child. A court will almost always require the disputing parents to mediate the dispute before the court decides the matter.

There Needs to be Substantial Change

In order to modify the existing custody arrangement, the moving party must demonstrate a material and substantial change since the entry of the previous order. Even if the proposed new arrangement would be more beneficial to the child, a court cannot consider the new arrangement without first finding a substantial and material change has occurred. In determining a possible modification, the court will consider a variety of factors.

These include (but are not limited to):

  • the past conduct and moral standards of each of the parties
  • the desires of the parties
  • the ability of a parent to have frequent and continuing contact with the other parent
  • the proximity of the homes of the parents
  • the ability of the parents to cooperate
  • any other factors the court finds relevant.

The court will give substantial weight to the existing order if the child is thriving, happy, and well-adjusted.

 

Whether or not a material and substantial changes have occurred is a factual determination. This varies from situation to situation and court to court. Courts have found that a parent’s relocation, a child starting school, and one parent continually preventing the other parent from exercising his or her parenting time is enough to justify a modification. However, a court will not automatically find those specific situations enough to justify a modification. It is important to consult with a Salt Lake City family law attorney before a parent files a petition to modify. This ensures the parent has a valid basis to modify. It is important to not file a petition to modify or answer frivolously. The court has the ability to assess the other parent’s attorney fees as a cost toward the offending parent.

Sarah ChristensenWhen Should I File a Petition to Modify?
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Initial Disclosures in Utah Divorce and Child Custody Cases

Utah courts require the parties in divorce and child custody cases to make initial disclosures to each other. The deadlines are automatically triggered when the respondent files his or her answer to the divorce or custody petition. Each party needs to meet the requirements to avoid flak from the other party and the court. But, doing initial disclosures right can also ensure that the case goes well. Good initial disclosures can make a positive difference at hearings, mediation, and trial.

As part of your divorce or custody case, Christensen Law’s attorneys assist with initial disclosures. Our assistance includes both preparing your disclosures and reviewing the other spouse or parent’s disclosures. Each case is unique, but below, we provide some generalities for reference purposes only.

What is involved with initial disclosures?

Typically, in family law cases, initial disclosures include financial declarations, witness names, and documents. In domestic cases, such as custody, divorce, parentage, annulment, etc., the parties must provide financial declarations. A financial declaration involves you sharing information about your income, assets, debts, and expenses. Both sides must provide a financial declaration and the documents to back it up. Such supporting documents include bank statements, tax returns, pay stubs, etc. Additionally, the parties should disclose any other documents or witnesses that they might use at

Additionally, the parties should disclose any other documents or witnesses that they might use at trial. The documents can relate to a number of things. When custody is at issue, you will want to gather documents showing your involvement in the lives of your children. For child support, you will want to gather documents showing that the other parent can make money. For debts and assets, you will want anything that supports your preference for how to divide everything. If any witnesses can back up the information, it helps to list them.

Why should you do a good job with initial disclosures?

There are a number of reasons why you should invest time into doing initial disclosures. We offer a number of reasons below:

  • It will help you organize and prepare your own case.
  • Obeying the rules requiring disclosure will keep you in the court’s good graces.
  • Having disclosures available will make it easier to mediate or prepare for mediation.
  • Your preparation and materials can be a reality check for an unreasonable opposing party.
Peter ChristensenInitial Disclosures in Utah Divorce and Child Custody Cases
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Recently Lost Your Car? See If You Can Modify Your Custody Agreement

When a court enters an order governing child custody it is always after hearing the presentation of evidence. The court will consider each of the facts and circumstances inherent to the particular situation of the family. This aids in making the orders accordingly.

That custody order becomes the governing and controlling schedule of custody unless and until a court modifies the order. Because the custody order is dependent on a particular set of facts, that order is the law of the case and will not be modified unless there is a showing of a “material and substantial change in circumstances.” See Hogge v. Hogge, 649 P.2d 51 (UTAH 1982).

Why Is “Best Interests of the Children” so Important?

In short, if one parent wishes to modify a custody award after a divorce decree or custody order has been entered, that party must be prepared to demonstrate a material and substantial change in circumstances. However, the question of whether there are such changes is only the first question to be asked. Only if there are such changes, the court will move on to the oft-quoted next question. Is it in the (let’s all say it together) “best interests of the children?”

Some common examples of changes in circumstances include parents remarrying, moving a significant distance away from the other parent, changing schools, among others. While these changes may constitute material changes in circumstances, they may not warrant a change in custody.

From the Court’s Point of View

The court will then consider if a change of custody is in the best interest of the child. If the court decides that the child’s friends, extended family, and school are so vital to their well-being that a change in custody would be worse for the child, the court won’t order it.

If the primary custodial parent moves and wishes to take the child with them, the court will consider several factors. They’ll look at the reasons for the move, the impact upon the child, and may order a change in custody to keep the child in his or her location in spite of primary parent’s relocation.

Each of these scenarios is fact sensitive. Anyone considering whether a modification of custody is appropriate should consult an attorney.

Sarah ChristensenRecently Lost Your Car? See If You Can Modify Your Custody Agreement
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Alimony: Marital Standard of Living

The Utah courts define the standard of living as “a minimum of necessities, comforts, or luxuries held essential to maintaining a person or group in customary or proper status or circumstances.”

The Utah Supreme Court has held that “it is the purpose of alimony is to equalize the standard of living for both spouses, maintain them at their present standard of living as much as possible, and avoid the necessity of one spouse receiving public assistance.” See Mullins v. Mullins, 2016 UT App. 77, ¶ 10 (quoting Boyle v. Boyle, 735 P.2d 669, 671 (Utah Ct. App. 1987)). “Usually the needs of the spouses are assessed in light of the standard of living they had during the marriage.” Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991).

7 Factors the Court Uses to Determine Alimony

  1. the financial condition and needs of the recipient spouse;
  2. the recipient’s earning capacity or ability to produce income. This includes the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  3. the ability of the payor spouse to provide support;
  4. the length of the marriage;
  5. whether the recipient spouse has custody of minor children requiring support;
  6. whether the recipient spouse worked in a business owned or operated by the payer spouse; and
  7. whether the recipient spouse directly contributed to any increase, such as education, in the payer spouse’s skill during the marriage.

Thus, although the goal of alimony is to maintain the parties at their marital standard of living, it is ultimately a balancing act by the court. The courts use mainly the Financial Declaration to balance one party’s respective need for alimony against the other’s ability to pay. Each party must submit a Financial Declaration to the court or they become subject to a penalty of perjury. The Financial Declaration states the party’s assets, liabilities, monthly income, and monthly expenses.

Other Things to Consider

Importantly, the Court can allow reasonably anticipated expenses. According to State Law, the court must “avoid focusing on actual expenses alone when assessing need because the expense level during separation may be necessarily lower than needed to maintain an appropriate standard of living.” See Kidd v. Kidd, 2014 UT App. 26, ¶ 24. Through the reasonably anticipated expenses, the spouses can establish the marital standard of living.

However, credible evidence must support these expenses. It is critical to have spent time during the discovery period obtaining and disclosing all evidence that may be used at trial. The evidence that establishes the marital standard of living could include bank and other financial statements, receipts, bills, etc.

Therefore it is best, to begin with this end in mind. The parties should gather the evidence needed to prove the standard of living that they enjoyed during the marriage. Include in your Financial Declaration your anticipated expenses based on this standard of living which should include your “minimum necessities, comforts, or luxuries held essential to maintaining [you] in customary or proper status or circumstances” which you enjoyed during your marriage and be prepared to back it up with credible evidence at trial.

Peter ChristensenAlimony: Marital Standard of Living
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Work-Related Child Care Expenses

Utah law allows a Court to issues orders regarding the payment of expenses considered reasonable and necessary. Reasonable and necessary means work-related child care expense for the dependent children. The order for the payment of work-related child care expenses is in addition to the standard monthly child support. Depending on the child and situation, work-related child care expenses can become expensive for any parent to afford alone. Every divorced parent must follow the Court’s orders regarding work-related child care expenses. This is so that no party is solely responsible for those costs.

The Court will determine how to allocate the work-related child care expenses between the parties. The Court will typically order the parties to share those expenses equally. However, a Court may order the costs be split pro-rata according to the parties’ income. This happens if there is a substantial difference between their earning capabilities. The Court will also designate the party who shall initially pay the bill.

The other parent will then need to reimburse the paying parent for his or her share of the bill. Typically, the party who takes the party to the care provider is the party who initially pays the bill. However, the Court’s order will ultimately dictate who is responsible for the initial amount. It is the paying parent’s responsibility to make sure they give a copy of the bill to the other parent.  Then they must request reimbursement for his or her share.

5 Important Tips to Follow When Dealing with Work-Related Child Care Expenses in a Post-Divorce Context

  • The court requires both parties to share child care expenses considered reasonable and work-related. The child care must be necessary for the parent to go to work. The court does not require the other parent to pay for half of the child care expenses for non-work related reasons (such as a babysitter so the other parent can go on a date or church activity) unless the other parent agrees otherwise.
  • Consult with the other parent regarding the care, the cost, payment options, and any reasonable alternatives when determining a child care provider. A parent who unreasonably incurs expenses without consulting the other parent may find themselves solely responsible for the expense.
  • When you receive the bill for the child care expense, immediately send a copy of the bill to the other parent. Do not allow them to accumulate. The Court will generally state that requests for reimbursements must be made within a certain amount of time. A parent who fails to request reimbursement in time may find out that they waived the right to reimbursement by failing to notify the other parent of the expense.
  • Send the request for reimbursement with a copy of the bill or invoice to the other parent via e- mail that way you have a copy of what was sent and when it was sent. You will have proof that you made the request if there is ever a dispute about whether or not you ever requested to be reimbursed.
  • Certain work-related child care expenses can give a parent a refundable tax credit. However, a parent can usually only claim the credit if he or she is claiming the qualifying dependent. Make sure that you work with your attorney and accountant to make sure that you will qualify for the tax credit.
Peter ChristensenWork-Related Child Care Expenses
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Dealing with an Adverse Custody or Financial Decision

In a Utah divorce or custody case, you may find yourself up against an adverse custody or financial decision. If you have any desire to challenge the decision, you must act fast. There are almost always deadlines to challenge a court’s decision. Those types of deadlines are not forgiving and can prevent you from obtaining relief you might deserve. Your options for challenging the decision depend on what kind of decision it was.

The attorneys at Christensen Law can help evaluate your situation and make specific recommendations. They can also help you carry out the recommendations and provide advice tailored to you. For informational purposes, we provide some generic observations below.

Commissioner Decisions

In Utah, a lot of family law court hearings are conducted before commissioners. Commissioners are like judges, but instead of making orders, they recommend orders. Their recommendations are court orders unless changed. If you disagree with a recommendation, you may object to it within fourteen days. The fourteen days begins when the commissioner makes the recommendation in court or when the commissioner issues a written recommendation. A judge will take your objection into consideration.

Judge Decisions

There are a variety of avenues available for challenging a judge’s decision. The availability of these avenues depends on the status of your case. If the judge’s decision is not a final judgment, the judge can reconsider his or her decision. If there is a final judgment, it may be possible to file a motion for additional findings or new trial. Such motions can lead to altered decisions. If you have exhausted options that will result in the judge changing the decision, you can appeal. An appeal involves asking a higher court to review the decision for error. An appeal can be complicated and expensive, so it is worth trying the other options first. Pursuing those options can also help improve your chances on appeal.

Peter ChristensenDealing with an Adverse Custody or Financial Decision
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Mandatory Divorce Education Classes

When two people start down the path of divorce, there are a lot of issues to consider. None of whichare unimportant. It is a process and there are a lot of boxes that must be checked. One of those boxesis a “Mandatory Divorce Education Class”. When the court says mandatory, they mean it.

A court will not allow certain steps in the divorce process to be taken without first taking the class.Because of the nature of the class, it really is essential that it be one of the first steps in the process.

What to expect in the class

The class can be taken online or live at the courthouse. The class usually lasts about one hour. In thecourse, the instructor will talk about such things as:

  • Alternatives to divorce;
  • Resources available from the courts for resolving custody and support issues without filing for divorce;
  • Resources available to improve or strengthen the marriage;
  • The positive and negative consequences of divorce;
  • A discussion of the divorce process;
  • Divorce and its impact on children and family relationships as well as financial responsibilities to the children;

Usually, by the time couples have filed for divorce and are required to take the course, the first few items on the list have already been decided. Nevertheless, the court wants couples to really understand what they are about to do. That’s why the court requires the class early on in the process.

What if I don’t take it early on?

As already stated, the court requires the class to be taken before certain other events take place. This is critical. Keep in mind that a divorce may take quite a bit of time to get from filing to divorce decree. It is not unusual for a contested divorce to take over a year to complete.

In the early stages of the process, however, a party may ask for temporary orders, i.e. custody or support. A motion for temporary orders is a subject big enough for its own blog, but essentially, it does what it says – it provides temporary support or custody orders while the divorce case proceeds down its long and arduous road. It is often critical for a party to receive some sort of support, be it alimony, child support or some form of relief before the divorce decree is issued.

What else is there?

A party may file a motion for temporary orders early on in the process, but a court will not hear your motion unless and until you have taken the divorce education class. Let’s say your opposing party files a motion for temporary orders asking the court to give them full custody of the children and ordering you to pay child support. Assume further that you file a counter-motion for temporary orders and you ask for full custody of the children and child support and alimony. When it comes time to hear the motions, the court informs you that because you have not yet taken the divorce education class, the court will not hear your motion and therefore, none of the things you’ve asked the court for can be granted. That’s an easy win for the other side. The divorce education course is critical.

Divorce can be a nasty and challenging process. Having a good divorce attorney can help you navigate the murky waters of the process.

Peter ChristensenMandatory Divorce Education Classes
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Dealing With Medical Expenses in a Post-Divorce Context

Utah law allows a Court to issues orders regarding the payment of medical expenses. These expenses must be reasonable and necessary ( and they include dental) for the dependent children. The order for the payment of medical expenses is in addition to the standard monthly child support. Depending on the child and situation, reasonable and necessary medical expenses can become expensive for any parent to afford alone. It is critical that every divorced parent follow the Court’s orders regarding medical expenses. The reason for this is that no party becomes solely responsible for those costs.

The Court will determine how to allocate the additional medical expenses between the parties. The Court will typically order the parties to share those expenses equally. However, a Court may order the costs to split pro-rata according to the parties’ income if a substantial difference exists between their earning capabilities. The Court will also designate the party who shall initially pay the bill. The other parent will then need to reimburse the paying parent for his or her share of the medical bill.

Typically, the party who took the child to the doctor is the party who initially pays the bill. However, the Court’s order will ultimately dictate who is responsible for the initial amount. It is the paying parent’s responsibility to make sure he or she gives a copy of the bill to the other parent and request reimbursement for his or her share.

3 important tips to follow when dealing with medical expenses in a post-divorce context:

  • Seek medical attention immediately if it is an emergency. If it is not an emergency, consult with the other parent regarding the treatment, the cost, payment options, and any reasonable alternatives. A parent who unreasonably incurs expenses without consulting the other parent may find themselves solely responsible for the expense.
  • When you receive the bill for the medical expense, immediately send a copy of the bill to the other parent. Do not allow them to accumulate. The Court will generally state that requests for reimbursements must happen within a certain amount of time. A parent who fails to request reimbursement in time may find out that they unfortunately waived the right to receive reimbursement by failing to notify the other parent of the expense.
  • Send the request for reimbursement with a copy of the bill or invoice to the other parent via e-mail that way you have a copy of what was sent and when it was sent. You will have proof that you made the request if there is ever a dispute about whether or not you ever requested to be reimbursed.
Peter ChristensenDealing With Medical Expenses in a Post-Divorce Context
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Custody Evaluation: Why Is It Important and What Comes After?

What is a custody evaluation?

In Utah, the courts sometimes order custody evaluations. This can happen in divorce, paternity, modification, or other custody cases. Basically, the court with input from the parties appoints an evaluator. If available, the evaluator will inform the court. Afterward, the evaluator is given standard instructions, and the parties are ordered to cooperate with the custody evaluator. The parties will likely visit with the evaluator, undergo assessments, and have a chance to share concerns. Eventually, the evaluator informs the parties and court that the evaluation is done or soon will be done.

What happens after the custody evaluation?

After the evaluation, the attorneys, parents, and evaluator will have a meeting. At the meeting, the custody evaluator will verbally inform everybody present of his or her conclusions. Often, a mediator becomes present and involved. The parties will be able to take advantage of the ability to mediate in light of the evaluation results. The results of the evaluation can have a number of effects on the mediation. The evaluation might clarify what is important or not important. The evaluation might also serve as a reality check for one or both of the parents. If you do not reach a settlement agreement, the case will eventually go to trial. If requested, the custody evaluator will prepare a written report and will be available to testify at trial.

What happens if the custody evaluator strongly favors or disfavors a particular parent?

As noted above, the custody evaluation can serve as a reality check. The evaluation might discourage one parent from moving forward on the case. On the other hand, it might give the other false confidence. The custody evaluator is not the judge. Also, the recommendation will not necessarily become the order of the court. If there is a custody evaluation in your case, consider hiring an attorney for the meeting. The attorney can advise you about the effect the evaluation has on your case. Also, if you would like to settle based on the evaluation, the attorney can help craft an agreement with which you and the children can live.

Peter ChristensenCustody Evaluation: Why Is It Important and What Comes After?
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Can Alimony Be Modified?

If you pay or receive alimony, it is possible for you to petition the court. This petition will allow you to change the amount you are paying or receiving. The court has broad discretionary powers in the initial instance and in modification proceedings. Also, the court will only overturn this on appeal if in the presence of clear abuse.

Rules of Alimony Modification

Under Utah Code Ann § 30-3- 5(8)(i) and § 78B-14- 211, Utah Courts maintain continuing, exclusive jurisdiction to modify alimony awards throughout the existence of the support order based on a substantial material change in circumstance not foreseeable at the time of the divorce. See also, Moore v. Moore, 872 P.2d 1054, 1055. You can consider a change material if it relates to the basis upon which the original award from the trial court. Mineer v. Mineer, 706 P.2d 106, 1062 (Utah 1985).

If the parties involved reasonably contemplated a change in circumstances at the time of divorce, then the court does not consider it not legally cognizable as a substantial change in circumstances in modification proceedings. Dana v. Dana, 789 P.2d 726, 729. In order for a material change in circumstances to be contemplated in a divorce decree there must be evidence. This evidence should come preferably in the form of a provision within the decree itself, that the trial court (or the parties) anticipated the specific change. Durfee v. Durfee, 796 P.2d 713, 716.

The rule of modification has limits only to those needs that existed at the entering of the decree of divorce (unless the court finds extenuating circumstances that justify that action). Finally, the court generally does not consider the income of any subsequent spouse of the pay or, except the court may consider that spouse’s ability to share living expenses. See Utah Code Ann. § 30-3- 5(8)(i)(ii)&(iii).

Continued…

In a Utah Court of Appeals case, Wall v. Wall, 2007 UT App 61, Mr. Wall petitioned the court to terminate his alimony obligation on the basis of Mrs. Wall’s completion of college and becoming qualified for full-time employment. The Court of Appeals upheld the trial court’s ruling that either her completing a college degree or her getting a job, or both, received consideration at the time of divorce. The Court found evidence of this in the trial court’s Findings of Fact (which contained the following statement: Mrs. Wall is a full-time student with limited recent work experience) and in Mrs. Wall’s complaint (which stated that she was attending college “in an attempt to obtain skills which would allow her sufficient income to support herself”).

Peter ChristensenCan Alimony Be Modified?
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